Hammond v. Boston Terminal Co.

• Decision Date: 30 October 1936
• Citation: 295 Mass. 566,4 N.E.2d 328
• Parties: HAMMOND v. BOSTON TERMINAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 566

4 N.E.2d 328

HAMMOND v. BOSTON TERMINAL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

October 30, 1936

Action of contract or tort by Emily C. Hammond against the Boston Terminal Company. From an order by the Appellate Division upon a report by the trial judge, defendant appeals.

Appeal dismissed.

Appeal from Appellate Division; Duff, Judge. A. W. Blackman, of Boston, for appellant.

R. I Hunneman, of Boston, for appellee.

RUGG Chief Justice.

This is an action of tort or contract brought in the municipal court of the city of Boston to recover damages for the loss of certain luggage and other personal property. The plaintiff filed interrogatiories to be answered by some officer of the defendant. Such officer answered some interrogatories and declined, on advice of counsel, to answer others. Subsequently, the plaintiff filed a motion to strike out one answer and parts of other answers. This motion was granted in part and denied in part. The plaintiff duly filed a request for a report to the Appellate Division and rulings thereupon were reported. The Appellate Division, on January 31, 1936 sustained certain contentions and denied other contentions of the plaintiff. The defendant, on February 5, 1936, claimed an appeal from the decision of the Appellate Division. Some additional answers to interrogatories were filed by the defendant on February 14, 1936. Motion to default the defendant for failure to answer further the interrogatories was filed on February 19, 1936, and two days later the defendant was defaulted for such failure. Damages were assessed on March 5, 1936. According to the docket entry of that date, an agreement as to damages was filed. The interrogatories related to the liability of the defendant and not to the damages sustained by the plaintiff. So far as appears from the record, no request was made by the defendant for report to the Appellate Division of any ruling or rulings made by the trial judge after the decision of the Appellate Division on January 31, 1936, and the defendant has not claimed any appeal from the default or from the assessment of damages. The default and assessment of damages have not been presented to the Appellate Division for determination.

It is provided by G.L.(Ter.Ed.) c. 231, § 109, that an ‘ appeal to the supreme judicial court shall lie from the final decision of the appellate division.’ A ‘ final decision’ is one which leaves nothing open to further dispute and which sets at rest the cause of action between the parties. The only decision of the Appellate Division shown on the present record relates to an interlocutory matter and not to a matter which is determinative of the merits of the issues raised in the action. The appeal must therefore be dismissed. Real Property Co., Inc., v. Pitt, ...